Galbraith: Making Treaty Implementation More Like Statutory Interpretation

Both statutes and treaties are the “supreme law of the land,” and yet quite
different practices have developed with respect to their implementation. For
statutes, all three branches have embraced the development of administrative
law, which allows the executive branch to translate broad statutory directives
into enforceable obligations. But for treaties, there is a far more cumbersome
process. Unless a treaty provision contains language that courts interpret to be
directly enforceable, they will deem it to require implementing legislation from
Congress. This Article explores and challenges the perplexing disparity between
the administration of statutes and treaties. It shows that the conventional
assumption that Congress must implement treaties that are not directly
enforceable by courts stems from an unduly narrow historical perspective. Instead,
largely forgotten nineteenth-century practice and cases reveal that the
executive branch can implement treaties so as to make them enforceable in the
courts. Drawing on this past practice, this Article argues that it is time to
reconfigure the administration of treaties. In at least some circumstances, the
executive branch should be able to translate treaty provisions into court-enforceable
obligations in a manner comparable to the statutory context, including
through rulemaking by administrative agencies. This approach is
particularly desirable for multilateral regulatory treaties, which have come to
play an increasingly important role in global governance.